Staff explained that the Committee had discussed the new Uniform
Interstate Deposition
and Discovery Act at the April 2011 meeting and recommended that it be adopted as a new
rule of court. After further discussion at the September 2011 meeting, the Committee
recommended that cross-references to the proposed new rule be added to N.D.R.Civ.P. 45,
N.D.R.Crim.P. 17 and N.D.R.Juv.P. 13. Staff presented the proposed amendments for
consideration and informed the Committee that Mr. Eric Fish of the Uniform Laws
Commission would be available by teleconference to answer any questions the Committee
still had about the Act.

The Chair asked whether any members had questions they
wanted to pose to Mr. Fish about
the uniform act. The Chair suggested that the Committee hold a preliminary discussion to
figure out what the Committee might wish to learn from Mr. Fish.

A member said that Mr. Fish had indicated in his written comments on
the issues raised at
the September meeting that the act was designed to cover civil, not criminal, practice. The
member noted that the draft amendments applied the act to the civil, criminal and juvenile
rules. The member said the Committee should discuss whether the act should apply to the
different rules.

Staff said that research had been presented at the September meeting
indicating that about
half of the states that had adopted the act had adopted it specifically as part of their civil
rules.

A member asked how a subpoena issued by the clerk under the act
would be served. A
member replied that it would be served like a subpoena currently is under the rules. The
member said the proposed rule changed two things: first, instead of filing a deposition notice
to get a subpoena, the party would file a subpoena from another state; second, the rule says
this act of filing the out-of-state subpoena is not an appearance in North Dakota. These are
the main changes from the current practice.

A member said that we have a provision in our civil rule dealing with
subpoenas in out-of-state cases. The member said that the proposal would remove this
mechanism from our civil
rule and replace it with the Uniform Act in the Rules of Court. The member said this seemed
to be a dubious strategy if the rule is intended only to be used in civil actions. The member
said the act should be made part of the civil rules if it is going to be used only in

-3-

civil actions.

Staff informed the Committee that the Court had included some
language from the uniform
act when it adopted amendments to Rule 45. Staff said the existing language in Rule 45 was
specifically drafted by the Committee and was not modeled on another state's rule or a
uniform law.

A member asked whether anyone has claimed that the existing Rule 45
mechanism for
issuing subpoenas in out-of-state cases does not work. A member replied that the Rule 45
mechanism works just fine. The member said that the reason to adopt the uniform rule
would be to have uniformity with other states, like the Uniform Commercial Code.

A member said under the current rule coming to North Dakota to get a
subpoena would
constitute an appearance and a local lawyer would have to be enlisted to help in the process,
which would be an added cost. A North Dakota lawyer going to another state would face
the same costs, except in states where the uniform act is in force.

The Chair asked if there is no appearance, who would have jurisdiction
if there was an
ethical violation in connection with a subpoena issued under the uniform act? A member said
that the home state where the case was pending would seem to have jurisdiction. The
member said if an attorney needed to take a step such as filing a motion related to the
subpoena, that would constitute an appearance in this state and local counsel would need to
be involved.

A member asked whether there was a consensus that the Committee
wanted to go forward
with a rule based on the uniform act. The Chair reminded the Committee that it had
approved the rule in April 2011.

The Chair asked what is currently done in criminal matters. A member
said it was rare to
do a deposition in a criminal case. A member said one of the advantages of making the
proposed rule applicable to civil, criminal and juvenile cases was that all matters would be
treated the same and there would be no need to wonder about the correct procedure in the
rare criminal or juvenile deposition.

A member said that if the Committee decided that the proposal should
be adopted only for
civil cases, then the only significant change from current procedure would be that the request
for a subpoena would not be an appearance. The member said that it would not be
worthwhile adopting the proposal only to make this change, especially given the questions
about ethics jurisdiction if there is no appearance.

-4-

Mr. Fish was contacted by telephone to answer the Committee's questions.

The Chair asked Mr. Fish to explain why the act was not intended for
criminal actions. Mr.
Fish said that the group that developed the uniform act was instructed to develop a procedure
for civil cases so the group did not discuss whether the act should be applied to criminal
actions. He said there was nothing in the act the was not compatible with a criminal action,
but the act was not designed for criminal actions.

The Chair asked about language in the act that said requesting
subpoenas under the act was
not an appearance in the state. The Chair asked which state would have jurisdiction to
discipline a lawyer who behaved unethically in connection with a subpoena issued under the
act. Mr. Fish said the intent was that the state where the action was taking place, and where
the attorney was a member of the bar, would have jurisdiction over any inquiry into unethical
conduct related to a subpoena obtained under the act.

The Chair asked whether it would be considered an appearance if the
out-of-state attorney
attempted to enforce a subpoena issued in North Dakota under the uniform act. Mr. Fish said
it would be considered an appearance if the attorney took action directly related to service
of the subpoena in North Dakota such as responding to an attempt to modify or quash.

The Chair confirmed the attorney would then have to be admitted pro
hac vice or find local
counsel if the attorney made an appearance in connection with the uniform act
subpoena.

A member asked whether, if the request for a subpoena is not an
appearance, conducting
an examination under the subpoena would also not be an appearance. Mr. Fish said this
would not be an appearance; an appearance would not take place without another step to
enforce or modify the subpoena.

A member asked whether a complaint based on unethical conduct at
the subpoena
deposition would then have to be brought in the attorney's home state. Mr. Fish said it
would have to be brought in the home state since taking a deposition under the subpoena was
not an appearance.

The Chair asked whether the purpose of the act was to create
uniformity across the states.
Mr. Fish said the purpose of the act was to allow subpoenas of out-of-state witnesses with
a minimal amount of judicial intervention. He said there was a hodgepodge of laws across
the country and uncertainty among attorneys about what procedure should be followed in a
given state. He said that uniformity was an important purpose of the act and also
to

-5-

create a familiar procedure that was parallel to that of the federal courts.

Mr. Fish said close to 30 states have currently adopted the act. He
said many states and
courts saw the benefit of having a simple and uniform procedure across the country. He said
22 states had adopted the act and that several others were considering it, including South
Dakota and Iowa.

The chair asked whether the states that had adopted the uniform act
had been making
significant modifications. Mr. Fish said that the states had generally been adopting the act
as is, making minor modifications to work with existing law. Mr. Fish said that most states
have made the act applicable to civil actions either by making it part of their civil rules or by
specifications in statute.

The Chair thanked Mr. Fish for his assistance.

A member said that having a uniform rule that could be applied in civil,
criminal and
juvenile cases was a good idea. The member said that the troubling part of the proposal was
that someone from out-of-state could come and conduct a deposition or require the
production of records without being subject to North Dakota ethics jurisdiction.

A member said that making obtaining a subpoena a non-appearance is
one thing, but
allowing an attorney to come to the state, perhaps spending days conducting a deposition of
a non-represented witness, and not calling this an appearance was something else. The
member said the worst part was if the attorney engaged in unethical behavior during the
deposition, the non-represented witness would have to somehow figure out that any
complaints would need to be directed to an out-of-state disciplinary body.

A member said that attorneys in civil practice regularly come to North
Dakota to take
depositions while North Dakota attorneys travel to other states. The member said the
proposed rule reflected ordinary deposition practice and would not be a change. A member
said a deponent with a complaint could contact the State Bar Association of North Dakota,
which would refer the deponent to the proper authorities.

A member said subpoenas are not generally needed when an attorney
wants to depose a
North Dakota resident in an out-of-state action. The member said everything is typically
taken care of by agreement and that problems are rare.

A member said that if lawyers are involved on both sides in the
deposition they may be able
to resolve problems among themselves. The member said, however, that if a non-represented
witness is treated unethically in a deposition, it is troubling that the witness

-6-

would have to go to another state to seek discipline against the lawyer. A member
replied
that if a person gets a subpoena, they generally seek some guidance from a lawyer and would
be able to do the same if they had a problem with unethical conduct during the deposition.

A member said that it is very easy to get a subpoena to conduct an
out-of-state deposition
in federal court, the attorney simply asks for one.

The Chair asked staff to go over the proposed amendments to
N.D.R.Civ.P. 45,
N.D.R.Crim.P. 17 and N.D.R.Juv.P. 13. Staff explained that Rule 45 currently contains the
mechanism for a party to seek a subpoena in an out-of-state action. Staff said that, under the
proposed amendments, this mechanism would be deleted from Rule 45 and replaced with a
cross reference to new Rule 5.1. Staff said that similar cross-references were proposed for
the criminal and juvenile rules, making the Rule 5.1 procedure applicable to civil, criminal
and juvenile actions.

A member said North Dakota would be unique by making the uniform
act applicable to
civil, criminal and juvenile matters. A member said that having it apply to criminal matters
would not be a problem because it was a good idea to have a consistent procedure that
applied to deposition subpoenas.

The main motion CARRIED. The rule proposal will be sent to the
Supreme Court as part
of the Annual Rules Package.

Staff explained that the Court considered the Committee's proposed
amendments to Rule
41 along with comments it received on the proposal and approved amendments that differed
from the Committee's proposal. Staff asked the Committee whether it wanted a form motion
and order developed to be used with the amendments as approved by the Court.

A member said it would be difficult to
draft a form motion for a balancing test. A member
said that the judge will have to do a balancing test and so a form order would be very
difficult to devise. The member said a fill in the blanks form motion that provided the
information the judge needed to do the balancing test might be possible.

A member said the form motion would
have to contain blanks that reflected all the

-7-

balancing factors from the rule.

A member said what the Committee sent
to the Court was a request to make it easier to
restrict Internet access to certain types of criminal case information. The member said the
Court then changed the language, making it possible to restrict access to the information only
after application of the existing balancing test. The member said it seemed less likely that
requests to restrict access would arise given the restrictive test the Court imposed.

A member questioned whether a motion
to restrict access under the provision could be an
ex parte motion. A member said the rule requires notice to be given. A member said the
procedure under the rule is not necessarily being followed.

A member said the change was proposed
because of the real problems people with
dismissed charges or acquittals face in not being able to find housing or jobs because of the
way criminal records are presented on the Internet. The member said that it may ultimately
be a legislative issue: the statutes now require that agencies report all arrests, acquittals, and
convictions to the BCI. The member said people should be required to go to the BCI for
these records. The member said some law enforcement agencies apparently are selling
incomplete criminal record information, i.e., arrest information with no information on
charges or disposition. The member said that the legislature should act to stop the sale of
this incomplete information, which is harmful to people who may be arrested but who are
not charged or who are exonerated.

A member said that the information in
court records is far more thorough than the BCI
records, which are all fingerprint driven. Another member said that the BCI records are not
updated as accurately as court records.

The Committee agreed that putting a
form motion together would be difficult. Members
said that litigants would need to submit the motion and provide notice, so a notice of motion
form would also be required. A member said an affidavit of service would also be required.
A member suggested that the small claims package of forms could be a model of the types
of forms required.

By consensus, the Committee decided
that staff should attempt to put together a set of draft
forms for making a Rule 41 motion. Staff will present the drafts at the April
meeting.

Staff explained that the
Committee considered the Supreme Court's suggestion that page
and word limits be reduced for appellate briefs at its April and September 2011 meetings.
Staff said the Committee approved the proposed amendments at the September meeting by
less than a two-third majority. Therefore, the proposal was back before the Committee for
further consideration if desired.

Mr. Boschee MOVED to rescind
approval of Rules 24, 32 and Rule 40. Ms. Ottmar
seconded. Motion FAILED on 6-9 vote. The rule proposals will be sent to the Supreme
Court as part of the Annual Rules Package.

RULE 58, N.D.R.Civ.P.,
ENTRY AND NOTICE OF ENTRY OF JUDGMENT;
RULE 77,
N.D.R.Civ.P., DISTRICT COURTS AND CLERKS (PAGES 128-149 OF THE AGENDA
MATERIAL)

Staff explained that the Committee discussed Rule 58's requirements related to notice of
entry of judgment and Unit 2's new policy reducing the clerk's role in giving notice of entry
of orders to attorneys and parties at the September meeting. The Committee instructed staff
to research notice of entry policy across the state and to make inquiries with the Court
Technology Committee regarding electronic filing of notice of entry of judgment documents
and possibly providing notice of
entry by email. Staff provided the Committee with
proposed amendments to Rule 58 and Rule 77 that would make court clerks responsible for
sending out notice of entry.

A member wondered why filing of the
judgment with the Notice of Entry of Judgment was
an issue. The member said it was common practice to serve a copy of the judgment with the
Notice and an Affidavit of Service but it was not necessary to then file the copy judgment
with the Notice and Affidavit. A member said that unless the copy judgment that was served
was also filed, there would be uncertainty about what was in the judgment that was served.
A member replied that if the Notice and Affidavit referred to the judgment on file with the
court and indicated that a copy of that judgment was served, filing of the copy judgment
should not be necessary.

A member asked whether the electronic
docket entry for a Notice of Entry of Judgment
filed with a copy judgment labeled as "exhibit 1" could simply read "Notice of Entry of
Judgment with Exhibit 1," with the whole package scanned together. A member said the
problem with this approach was that the clerks have been directed to file
attachments

-9-

as separate documents. The member said if an affidavit comes in with attachments, the
affidavit is filed as one item and the attachments are listed as additional items. The member
said that this is helpful for someone looking at the electronic file because they are not
required to search within a large electronic document for the item they need.

A member said the clerks are concerned
that, if there are multiple versions of the judgment
on file, even if the second version is labeled "exhibit 1" or "copy judgment," that there will
be confusion about the date the judgment was filed. A member said that if the copy
judgment is properly labeled when it is filed there will be no confusion--the clerk simply
needs to identify what the attachment is.

A member said filing of copy judgments
is a minor issue compared to the major problem
of lawyers and parties not getting notice of orders being entered. The member said there is
no consistent policy among the clerks--one clerk will send out notice, another will not. The
member said sometimes it takes judges a long time to issue orders, so if the clerk is not
sending out notice, the lawyer or party will need to check with the court daily for a couple
of months to confirm whether the order has been entered. The member said the proposed
amendment to Rule 77 corrects the problem of inconsistent policy and having to check back
for orders--if an order is issued, the clerk will send notice.

A member said sending out notice should
be a simple matter with the Odyssey system. A
member replied sending out notice was not simple if the lawyer or party is not connected to
Odyssey. The member said the clerks deal with many self-represented litigants who are not
on Odyssey. If the clerks are required to send out notice of orders to everyone, this will
increase their workload and create staffing issues.

A member said that Minnesota clerks
have been sending out notice of orders for years. A
member replied that Minnesota has more court staff. A member said to simplify matters
clerks could just mail out a simple notice that an order had been entered and provide the
docket number to the self-represented litigant--it would not be necessary to mail out the
order.

A member said it would be simplest to
leave the rules as they are. The member said
attorneys can continue to file copy judgments with the notice of entry because this is allowed
by the rule. A member answered that some clerks do not accept copy judgments and even
throw them away. A member replied that the clerks are required to follow the rules and how
the clerks handle copy judgments is a training issue with the clerks' office.

A member said the main issue is not
being able to timely find out when an order is entered.
The member said sometimes it is weeks before attorneys find out that orders are

-10-

entered. The member said the lawyers and law office staff do not have the time to
check
Odyssey every day on every case where an order might be entered. The member said that
the federal court system is wonderful because once an order is entered, every attorney on the
case gets notice that very day. The member said that if this could be done through Odyssey,
many of the concerns the Committee had raised would be solved. The member said there
needed to be a uniform system across the state where notice of entry of orders is handled the
same way and all attorneys and parties get notified. The member said getting notice of
orders is necessary so that attorneys and parties can resolve their cases.

A member asked what kind of orders do
attorneys not get notice of. A member replied
orders on motions, for example. A member responded that in Unit 2, if there is a hearing on
a motion and a judge has to make a decision and enter an order, the judge's secretary sends
out a copy of the order to the parties. The member said it was surprising if this policy was
not being followed across the state on judge issued orders--if a judge does a memorandum
opinion, it should go immediately to the parties.

Members said that the practice varies
across the state and orders do not necessarily get sent
to attorneys. A member said it can be weeks before an attorney hears back on whether an
order submitted for a judge's signature got signed.

A member said that the Committee
needed a report from the Court Technology Committee
on whether it is possible for notices to be sent out through the Odyssey system. A member
said the best solution to the problem of giving notice of orders entered would be using an
automatic electronic system that sends out notice.

A member said the federal court system
was effective and maybe attorneys had become
conditioned to that level of service. The member said attorneys used to working with the
federal system were simply baffled that it is not possible to get notice through the state
system. The member said that providing notice seems like a basic and fundamental
capability that an electronic filing system should have.

A member said that providing notice
must be a function that can be provided through
Odyssey. The member is involved with a case in McLean County and is getting notice
through Odyssey every time anything is filed in the case. A member said that this notice is
initiated by the clerk, not automatically. A member asked why it was not possible for clerks
to push a button and provide this kind of notice in every case.

A member said that, on the notice issue,
addresses were a real problem. The member said
that pro se litigants often provide multiple or uncertain addresses to the court. The member
said the clerks were also concerned about having a rule that placed a duty to
provide

-11-

notice on them.

A member said it was important to get an
answer from the Court Technology Committee
on Odyssey's capabilities to address the notice issue.

A member said the Committee should
pass the proposal rather than tabling it to show the
court administration and the clerks that the Committee is serious about having notice
provided to parties and attorneys. A member said that court policy should not be set
according to Odyssey's capabilities.

Staff explained that Committee
member Mr. Larry Boschee had pointed out that subdivision
(d) of Rule 8 contains an internal cross-reference and otherwise lacks content. Mr. Boschee
proposed the rule could be amended to eliminate the empty subdivision.

Staff explained that the Supreme Court requested that the Committee
discuss adding a
sentence to Rule 4's explanatory note indicating that "the time of service for an item served
by mail or third-party commercial carrier under Rule 4(d) is the time the item is delivered
to or refused by the recipient." Staff also presented a proposed amendment that would
transfer language on demanding a party to file the complaint to Rule 5.

Judge Kleven MOVED to adopt the
proposal. Judge McCullough seconded.

A member suggested that the proposed
language be placed in the text of the rule in addition
to the explanatory note. The member said other states have rules that sort out all the possible
results that can happen when a party attempts to serve by mail and set out when service is
effective.

-12-

A member asked how is the date of refusal established for the purpose of setting a date
of
service. A member said if service of a certified letter is refused, the person who refuses
service must sign the card and it is returned to the sender. The member asked how refusal
of service is documented when sent by a shipping service other than the post office. The
member said it might be helpful to develop rule language to indicate when service is effective
under a variety of different serve by mail situations.

A member said it is problematic to
develop rule language because most questions about
when service was effective are factual questions. The member said different commercial
carriers use different documentation and different delivery procedures. The member said that
rule language could not be developed without taking the different procedures into
account.

A member said that there are rules from
other states and federal rule proposals that could
be used as a model for a more specific rule defining when service is effective. A member
said Rule 4(l) was quite specific about the effect of delivery refusal. A member suggested
that the proposed new explanatory note language could possibly be added to Rule 4(l) to
make the rule language more specific.

Mr. Boschee MOVED to amend Rule 4
at page 173, line 297, to add the language "The
time of refusal is the time of service." Mr. Reierson seconded.

A member suggested that the motion
language be rephrased to put the emphasis on service.
A member suggested that "date" should be used rather than "time."

By unanimous consent, the motion
language was amended to read: "Service is complete on
the date of refusal."

Motion CARRIED.

A member asked if there was an
inconsistency between the language at page 172, line 294,
"mailed or sent with delivery restricted and requiring a receipt signed by the addressee" with
other language in the rule referencing sending by "third party commercial carrier." Members
responded that language on page 173, line 295, referred to "mail or delivery" refusal, which
seemed to embrace attempted delivery by "third party commercial carrier."

The main
motion CARRIED. The rule proposal will be sent to the Supreme Court as part
of the Annual Rules Package.

Staff explained that the Supreme Court requested that
the Committee discuss proposed
changes to Rule 5 that would require a party seeking to file a summons and complaint or
other initiating pleading to also provide proof of service under Rule 4 that would be filed at
the same time. Staff also presented a
proposed amendment that would transfer language on
demanding a party to file the complaint from Rule 4.

A member asked how a party could seek
a temporary restraining order under Rule 65 if they
were prevented by the new language in Rule 5 from filing a complaint without also providing
proof of service. The Chair said that there was a procedure set out in the revised Rule 65
that allowed parties to file a copy of the complaint as part of the procedure for seeking
injunctive relief.

A member said certain statutory actions,
like claim and delivery, require a party to get a
court order before the complaint is served. A member said this would be a problem under the
proposed rule only if the complaint had to be filed at the time the court order is requested.
A member said in a claim and delivery action an affidavit must be filed and then a court
order is issued, which order is then served with the summons.

A member said a person had been trying
to get a North Dakota complaint served in another
state. The out-of-state sheriff refused to serve the complaint without a file number. The
member said the person would not be able to get a file number under the proposed rule
because service would not be complete. A member said that the person could find a
commercial process server or a private party to serve the complaint if the sheriff
refused.

The Chair said it has always been the rule
that a complaint or other initiating document
needed to be served before a file could be opened and further action could take place in the
matter. A civil action is not commenced until service is made. Unfortunately, the rule against
opening a file in a matter that has not been commenced has not been followed
consistently.

A member said that eviction actions
normally are filed before service so that a hearing
date can be obtained. The summons and complaint are then served with the hearing date
inserted.

A member said there was recently a rash
of complaints filed by an inmate suing many

-14-

people in the legal community. The court went ahead and filed the complaints without
the
complaints being served beforehand. The inmate claimed to be indigent and claimed the
court therefore had responsibility to serve the complaints. The member said it was a mess.
A member asked whether the rule could account for the need to sometimes file before service
by inserting language allowing a matter to be filed without proof of service with prior
approval of the court.

Mr. McGee MOVED to amend at page
181, line 62, to add the language "Absent prior
approval by the court." Ms. McLean seconded.

A member asked how someone seeking
court approval to file would get access to the court.
A member said the clerk could simply bring the request to a judge without filing the matter.
The member, however, said that while an exception to the service requirement was
appropriate, the proposed language would give the court unfettered discretion on whether to
allow filing before service. The member said it might be better to have an exception that
allowed filing without service if filing was allowed by law.

A member said that when bringing a
petition under the Uniform Child Custody Jurisdiction
Act, it is often necessary to get an emergency order before filing a petition. A member said
if the motion was changed to provide an "allowed by law" exception, there would be no
obstacle to getting an emergency order before filing.

A member said an "allowed by law"
exception might be better than a judicial approval
exception because this would limit questions about a judge's exercise of discretion. A
member said such an exception would also put the burden on the party to identify a law that
authorized filing before service.

A member asked whether the clerk
would be required to make a legal decision about
whether filing before service in a given case was authorized by law. A member said that the
clerk could simply refuse to file absent authorization by a judge to file. A member said
eventually the clerk's manual could be supplemented with material on the clear cases where
filing before service are authorized, such as eviction.

Judge Greenwood MOVED to amend
the motion to substitute the language "Unless
otherwise authorized by rule or statute." Judge McCullough seconded.

A member said that the clerk's office is a
gatekeeper on what documents are filed, and the
proposed language would require the clerk to make a legal decision on whether filing is
allowed before service in a given case. A member said that clerks could consult with a
judge. A member asked whether this would be possible in a rural county. A member
responded that

-15-

clerks can consult judges by telephone or email.

A member said if lawyers or parties
consult the rule before attempting to file a document,
they will know that they either need to serve the document first or be prepared to show why
the law allows the document to be filed prior to service.

A member said while the language of the
proposal seems to give the clerks the
responsibility to decide whether a law allows filing before service, as a practical matter they
will seek advice from a judge before filing. A member said in places where there is an
established practice that allows filing of certain actions, such as evictions, prior to service
the judges may advise the clerks to go ahead in filing these cases without further consultation
with a judge.

The motion to amend CARRIED. The
motion as amended CARRIED.

Staff was instructed to reference the
amended language in the explanatory note.

The main
motion CARRIED. The rule proposal will be sent to the Supreme Court as part
of the Annual Rules Package.

Staff explained that
amendments to Rule 3.1 had been developed to supplement the
previously discussed amendments to N.D.R.Civ.P. 5. The amendments would eliminate the
requirement to "attach" proof of service and make it clear that a document that does not meet
all of the rule requirements cannot be filed. In addition, Mr. Brad Beehler, SBAND's
representative to the Committee, requested that the Committee address superseding the
N.D.C.C. § 29-15-21 requirement that demands for a change of judge be submitted in
triplicate.

By unanimous consent the word
"instrument" at page 191, line 32, was replaced by
"document."

A member said that even if the proposed
amendment to the rule were adopted, people
looking at the change of judge statute would still find the word "triplicate" and would still
send in their demands in triplicate. Staff said that when the Court approves a rule change
that supersedes a procedural statute, the Court informs the Legislative Council and the statute
is

-16-

removed.

A member said that criminal defendants
send in motions for reduction of sentence all the
time. The member said that these motions are never served on the state's attorney. The
member said the court typically sends a copy of the motion to the state's attorney. A
member said that at times these reduction of sentences motions are so clearly baseless that
the court will examine the motion and deny it without involving the state's
attorney.

The member said that the proposed
language of the rule would bar filing of these motions.
A member said that it did not seem appropriate for the court to file these motions if they had
not been served. A member said that filing of documents without proof of service was
already contrary to the rule, but that in some judicial units clerks have been instructed to file
everything.

A member asked about the language at
page 190, lines 20-21, that had been proposed to
supersede the triplicate language in the change of judge statute. The member said the
proposed language conceivably could be used to prevent filing of document copies as
attachments to documents. A member said that duplicate documents get filed with briefs and
affidavits on a regular basis. A member said that it would be unfortunate if the proposed
language was used to prevent the legitimate use of copy documents with affidavits and
briefs.

Mr. Hoy MOVED to amend the
language at page 190, line 20-21, to read: "A party need
only file the original demand for change of judge." Ms. Ottmar seconded.

Members said that the language seemed
out of place in Rule 3.1 and that people would
likely still file triplicate copies under the statute until the language was removed from the
statute. A member said the main benefit of making the amendment would be to supersede
the statute.

Motion CARRIED.

By unanimous consent, the explanatory
note was amended to be consistent with the
amended language of the rule.

Staff explained
that the Chair requested
that the Committee discuss the
status of

-17-

electronic discovery in North Dakota. To provide a basis for the discussion, staff
presented
proposed amendments to Rule 26 that would create a framework for voluntary discovery
meetings and provide a definition of "electronically stored information" and of discoverable
metadata.

The Chair said that based on recent
developments in electronic discovery, it may be
advisable for North Dakota to take additional steps to deal with it. The Chair said that the
rules should give guidance to litigators practicing in court so that electronic discovery issues
do not come as a surprise when they arise.

A member asked for the definition of
"reasonably accessible" metadata. Staff said that this
standard was the most conservative standard for access to metadata and was based on the 7th
Circuit standard. The 7th Circuit comments indicate that reasonably accessible metadata
includes date sent, date received, author and recipient but deeper metadata is not
discoverable.

A member said that the proposed
language for the discovery meeting location and meeting
seems to conflict--the initial language seems to require the discovery meeting to be in the
county where the action is pending while later language allows the meeting to be held by
telephone or video conference. A member suggested that the rule's requirements would be
satisfied if one person was in the county while another was on the phone--the locus would
be where either of the recipients was at.

A member said that the language
dictating where the meeting was to take place was not
needed. The member said that, in North Dakota, an attorney from Williston and one from
Fargo may have a case venued in Bismarck. The member said it makes no sense to have the
attorneys meet in the county where the case is venued if they are located elsewhere.

A member said the proposed language
allows attorneys to agree to meet wherever they wish
for the discovery meeting.

Mr. Dunn MOVED to rewrite language
at page 209, line 181-182: "If such a
request is
made, the parties must meet within 21 days, unless agreed otherwise by the parties or their
attorneys or another time for the meeting is ordered by the court." Mr. Reierson seconded.

Motion CARRIED.

-18-

Mr. Hoy MOVED to replace "pursuant to" with "under" and delete "rule" at page 211,
line
223. Ms. McLean seconded.

Motion CARRIED.

The main motion CARRIED. The rule proposal will be sent to the
Supreme Court as part
of the Annual Rules Package.

The meeting recessed at 4:30 p.m. on
January 26, 2012.

January 27, 2012 -
Friday

The meeting was called to
order at approximately 9:00 a.m. by Justice Mary Muehlen
Maring, Chair.

The Chair welcomed Tom Trenbeath,
chief deputy attorney general, and Tim Myers, BCI
agent, who were present to answer any questions the Committee might have on the 24/7
program.

Staff reviewed the discussion of Rule 46 at the September 2011 meeting,
when the
Committee addressed a letter from the N.D. Association of Criminal Defense Lawyers, who
had concerns about participation in the 24/7 sobriety program being used as a condition of
bail. Staff presented the Committee with research on the use of the 24/7 program as a bail
condition in South Dakota and how 24/7 violations were enforced in that state.

The Chair asked how many judges were
using 24/7. The judges on the Committee do use
the program. As far as enforcement when someone violates the program, some judges have
been forfeiting a portion of their bond and post an additional amount to get out. Other judges
have leaned to the Minnesota approach, which is to obtain a large cash bond or a smaller
cash bond plus participation in the 24/7 program. If someone who chooses the smaller bond
violates the program, they are taken into custody and can request a new bond
hearing.

A member said that one type of violation
is that people do not have the money to pay for
a given test. These people are taken into custody and generally put out as soon as the court
sees them. If the person has a positive test, the court will hold the person longer in jail and
increase their cash bond.

-19-

A member said that in some parts of the state, a defendant submits a "promise to
appear"
after the initial arrest and is released on a sheriff's bond with no judicial intervention. In
some cases, the defendant may agree to submit to the 24/7 program as a condition of release
on a promise to appear. A member said that if the defendant is not satisfied with the sheriff's
bond conditions, the defendant can request a bond hearing in court. The member said that
in State v. Hayes, 2012 ND 9, the
Supreme Court held that conditions of release cannot be
imposed absent an inquiry by the magistrate under Rule 46(a)(3). The member said that
imposition of release conditions under a sheriff's bond without judicial involvement may be
contrary to Hayes.

A member said that under Rule 46(a)(4),
the court is directed to inform a person given a
conditional release that a warrant for their arrest will be issued on any violation of the
conditions. The member said that if a person is released under the condition of participating
in the 24/7 program, the person can be arrested immediately without a warrant if there is a
violation. The member said this result seems inconsistent with the rule, but it is allowed
under the 24/7 statutes.

Staff said that the South Dakota bond
condition form provides a warning that violation of
the 24/7 condition can lead to immediate arrest and detention without bond.

Staff informed the Committee that it would
need to send Rule 3.1 to the Supreme Court as
an emergency measure if it wished to timely supersede the triplicate filing requirement in
the change of judge statute.

Mr. Hoy MOVED to send the Rule 3.1
proposal to the Supreme Court as an emergency
measure. Ms. Ottmar seconded. Motion CARRIED.

Staff explained that Mr. David Peterson
wrote the Committee to request that Rule 33 be
amended to limit the number of interrogatories a party may serve to 25, consistent with
Fed.R.Civ.P. 33. Mr. Peterson's maintained that the change was needed because of the
"excessive and ridiculous" number of interrogatories being served even in simple
cases.

Mr. Dunn MOVED to approve the
proposed amendments to Rule 33. Mr. Boschee

-20-

seconded.

A member said serving an abusive
amount of interrogatories is a big problem in North
Dakota. The member said limiting interrogatories to 25 would not be good, especially in
domestic cases when parties are trying to save legal fees by conducting discovery through
interrogatories. The member said 75 might be a reasonable amount of interrogatories, but
that it was not necessary to make a rule to keep people limit interrogatories.

A member said that a colleague recently
received a set of 247 interrogatories in a domestic
relations case. The member said that interrogatory abuse has not been a problem in North
Dakota, but things are changing and it is becoming a problem. The member said 25
interrogatories was too low a limit, but that there should be some limit. The member said
attorneys should not have to seek protective orders in every case.

A member said that having many
interrogatories served in domestic cases is becoming a
more frequent occurrence. The member said that 25 interrogatories or so was customary just
a few years ago but now 200 or more interrogatories in domestic cases is not uncommon.
The member said that much of the information sought by the many interrogatories seems like
information that should be automatically disclosed under Rule 8.3. The member said often
at the conclusion of a domestic case the attorneys ask for $20,000 plus in attorney fees to
cover this discovery from clients who do not have that much money between them to begin
with. The member said this is frustrating for the court.

A member said the rules allow a party
who receives harassing discovery to seek protection
from the court. The member said the proposed 25 interrogatory limit is too low and there are
ways to deal with too many interrogatories that do not involve changing the rules.

A member said 25 interrogatories would
not be enough, but that the example submitted by
Mr. Peterson is typical of the excess amounts of interrogatories commonly seen. The member
said there were "only" 84 questions but this rose to 275 questions if subparts were included.
The member said if interrogatories were the only way to get discovery, having unlimited
interrogatories would be fine. The member said, however, that the same questions asked in
interrogatories are typically asked again in depositions. The member said it seems like
parties do not even look at the interrogatory answers. The member said that some attorneys
are abusing the current system and that there needs to be some limit on interrogatories. The
member said going to the court for help is not a desirable solution because the court does not
want to be involved in discovery disputes.

A member said that some attorneys who
send out hundreds and hundreds of

-21-

interrogatory questions refuse to provide the other side with electronic copies. The
other side
then has to type out all the questions again while preparing the answers. The member said
there should be limits on interrogatories, perhaps 50-75. The member said interrogatories
are supposed to give attorneys a start on discovery with follow up done in depositions.

A member said attorneys hate to go into
court and ask for a protective order on
interrogatories especially when their clients do not have much money.

Mr. Boschee MOVED to amend at page
248, line 13, to change "25" to "50." Judge
McLees seconded. Motion CARRIED.

A member asked for the definition of
"discrete subpart." Staff said the federal commentary
said subparts to a question could not seek information about separate subjects but could seek
specific details related to the main question. Staff said that federal case law likely expanded
upon this commentary.

Judge Kleven MOVED to add language
to the explanatory note including the federal
definition of "discrete subpart." Ms. Ottmar seconded. Motion CARRIED.

The main motion CARRIED. The rule proposal will be sent to the
Supreme Court as part
of the Annual Rules Package.

Staff explained that a new Fed.R.Crim.P. 4.1,
separating and updating the parts of
Fed.R.Crim.P. 41 that authorized the issuance of search warrants by remote communication
and electronic transmission, took effect December 1, 2011. Staff presented a proposed new
Rule 4.1 for North Dakota based on the federal rule and companion rule amendments to
N.D.R.Crim.P. 3, 4, 9 and 41 designed to implement the "reliable electronic means" option
for complaints, arrest warrants, summons and search warrants.

Judge McLees MOVED to adopt the
proposed new Rule 4.1. Mr. Olson seconded.

A member said that one change in the
proposed new rule is that the magistrate would be
responsible for recording and transcription. The member said that some judges do not have
recording equipment at home, which is where they receive many warrant requests. The
member said the requesting entity typically has done the recording and transcribing in the
past.

-22-

A member said that probable cause is generally done by affidavit rather than called in.
The
member wondered why it would be necessary to make a transcript immediately of the
probable cause proceeding as the proposal seems to require.

A member said that the current rules
require a magistrate to make a recording if a device
is available or to take notes if not. A member said that the state's attorney or police
generally have digital recorders and they make the recording, not the magistrate. The
member said if the magistrate is able to do the proceeding in the courthouse, then they use
their own equipment. The member said the recordings, regardless of who makes them, are
not now automatically transcribed as the rule proposal would require.

A member said the point of the rule is
not to require judges to buy recording equipment but
to ensure the integrity of the record on which a warrant is issued. The member said leaving
the recording with the officer does cause some concern, but as long as there is a recording
made that is provided to the court so that it can be transcribed at a later date, the rule's intent
would seem to be satisfied. The member said that as part of modernizing the rule, the
Committee should take into account modern recording devices.

A member said the transcription
requirement in the proposal is probably not necessary for
many of the warrants the rule covers, such as arrest warrants and summonses. A member said
that a recording of a proceeding can be saved on a disk or flash drive, but this is something
the clerks will have difficulty filing.

A member asked how the recorded
proceedings were stored and preserved. Judges on the
Committee indicated that they were uncertain. A member said many of the transcriptions
were not very good and preserving the integrity of the recordings was important so that
proceedings can be reviewed.

A member said if a BCI agent is seeking
a warrant, they record the proceeding on their end
and put it on a disk. The disk is then turned over to the judge who stores it in chambers. The
member said the proceeding does not get transcribed unless there is a controversy.

A member said in a middle of the night
situation, when no court recorder is available, the
police will record the proceeding on their digital recorder and they make a transcript, which
is turned over to the court. The member said that it would be possible to request an
electronic copy in addition to the transcript.

A member said that, from a criminal
defense perspective, if law enforcement makes the
recording, it would be preferable for them to turn the recording over to the court and
have

-23-

any transcript made by court staff. A member said the one solution would be to have
law
enforcement make a transcript and a digital copy so that the transcript could be cross-checked if
there is any controversy.

A member said consequences would
have to be borne by the state if the recording could not
be found, or had deteriorated, or was unintelligible. A member said that law enforcement
seems to be very thorough in making adequate recordings and more judges are obtaining
recording equipment to use in their homes. The member said recordings are replacing law
enforcement affidavits so law enforcement has taken steps to have adequate recording
equipment.

A member said it is necessary to have
warrant forms ready when doing a warrant by remote
means. A member said that law enforcement typically emails the form to the judge, who can
complete or amend it and email it back to law enforcement. A member said being able to
work with warrants by email is a great tool for rural counties.

The Committee discussed possible
amendments to the proposal consistent with the issues
raised during the discussion.

Mr. Quick MOVED to amend the
proposal at page 268, lines 17-22, as follows:

" (i) haveensure the testimony is
recorded verbatim by an electronic recording device, by
a court reporter or recorder, or in writing;

(ii) ensure any recording or
notes are filed, transcribed on request, transcribed have the
transcriptionand any transcription is certified as accurate;

(iii) sign any other written record
and ensure it is certified as accurate and filed.;
and

(iv) make sure
thatensure the exhibits are filed."

Judge Reich seconded.

A member wondered what sort of
written record would need to be signed as required by
(iii). A member said possibly the court reporter's notes, as when recorded by shorthand.
Another possibility was the original affidavit-- a member said the whole point of this part
of the proposal was to account for additional testimony and exhibits used to supplement the
original affidavit.

A member said sometimes the affidavit is
submitted and then there needs to be additional
writing on it by the officer. The officer would initial off on the writing and then the
magistrate would need to sign the affidavit as required by (iii).

-24-

A member asked why the magistrate would have to ensure the written was certified as
accurate. A member said that in some cases, the warrant would be obtained by remote
communication and law enforcement would have any documents rather than the magistrate.
The magistrate would then have to ensure the document was accurate once it was received
from law enforcement.

A member asked who would do the
certification when police officers transcribe a recording.
A member said the person who did the transcription would have to certify it as accurate
under the rule.

The motion CARRIED.

A member said it was not clear from the
rule that a record needed to be made of the entire
proceedings. The member said that (b)(2)(B), which the Committee amended, made it clear
that a record needed to be made when taking additional testimony. The member said there
were no details of how to make a record in (b)(1).

A member said (b)(2)(A) deals with the
affidavit, which is testimony under oath. The
member said that any "testimony" in connection does not need to be recorded, it is attested
to on the affidavit in writing. The member said additional testimony and evidence has to be
recorded, and this is dealt with in (b)(2)(B).

A member said if there is no affidavit and
the magistrate is just taking an officer's
testimony, this would be required to be record under (b)(2)(B). A member said that a
standard warrant is just based on an affidavit and it is not necessary to make a recording of
swearing in the officer on the affidavit.

The main motion CARRIED. The rule proposal will be sent to the
Supreme Court as part
of the Annual Rules Package.

Staff explained that proposed
amendments to N.D.R.Crim.P. 4 were designed to implement
proposed N.D.R.Crim.P. 4.1 and the "reliable electronic means" method for obtaining arrest
warrants and summonses.

Staff explained that proposed
amendments to N.D.R.Crim.P. 9 were designed to implement
proposed N.D.R.Crim.P. 4.1 and the "reliable electronic means" method for obtaining arrest
warrants and summonses.

Judge Kleven requested that the Committee take a second look at Rule
9.

A member pointed out that at page 286,
line 14, the rule requires that warrants be signed
by the clerk. The member said that in some districts, magistrates or judges sign all arrest
warrants. The member said that other language in the rule indicates that warrants are issued
by the court. The member suggested that it would be appropriate for the rule to require
warrants to be signed by a magistrate or judge.

Judge Kleven MOVED to amend Rule 9
at page 286, line 14, to replace "clerk" with
"court." Mr. Olson seconded.

A member said that Rule 4(b)(1) says
that a warrant on a complaint must be signed by the
issuing magistrate. A member said there might be a reason why an arrest warrant on an
indictment or information needs to be signed by the clerk.

Judge Kleven MOVED to table for staff
to research why the clerk has been designated to
sign the warrant under Rule 9. Judge McCullough seconded. Motion CARRIED.

Staff informed the Committee that form and style revisions to the Federal
Rules of Evidence
took effect on December 1, 2011. Staff said that the Rule on Rules, requires the Committee
to study and review all rules of pleading, practice and procedure, including the

-27-

North Dakota Rules of Evidence. Staff explained that the proposed changes to the
evidence
rules were designed to make the rule more easily understood and to make style and
terminology consistent throughout the rules without changing any result in any ruling on
evidence admissibility.

Staff presented proposed amendments to
Rule 103 based on the amendments to the federal
rule. Staff explained that the proposal contained new language that eliminated the
requirement for a party to renew objections to evidence admission once a definitive ruling
was made.

A member said the new language on
renewal of objections was a significant change to the
rule. A member said there was a lot of case law on the existing requirement that objections
be renewed. The member said the theory behind requiring is that evidence can come out
differently at trial than expected at the pre-trial motion in limine stage, so objections need
to be renewed at trial.

A member said that the change was not a
good idea. The member said the context of a
motion in limine can change at trial. A member said it is very common to have witnesses
change their testimony between preparation and when they get on the stand.

A member said that the change, if
accepted, would be across the board and apply to civil
and criminal trials. A member said it does not hurt to require a party to renew an

-28-

objection or try to offer evidence again once trial begins. The member said that the
negative
side of the current rule is that a party who really wants a piece of evidence admitted has
license to try again and again to have it admitted, based on an alleged change of context. The
opposing party then needs to raise their objection again to prevent it from coming in and to
preserve the issue for appeal.

A member said that judges will be able to
get around the new language, if it is accepted, by
being less definitive with their rulings on motions in limine.

A member said that, under the current
rule, if a side objects to a type of evidence that is
likely to be discussed by many of the opposing witnesses, the side will be required to make
repeated and identical objections at trial in order to attempt to prevent the evidence from
being admitted and to preserve the issue for appeal. A member said the proposed change
would be beneficial in this situation because the side would only need to make its objection
once.

A member said a compromise solution
would be to limit the non-renewal rule to objections
made at trial. The parties could then make motions in limine, and any party aggrieved by a
ruling on a motion in limine could renew their objection at trial. Once a definitive ruling was
made on an objection at trial, however, there would be no requirement to renew the
objection.

Mr. Hoy MOVED to amend at page 310,
line 19, to delete the words "either before or."
Judge Marquart seconded.

A member said the proposed amendment
would help prevent the situation where a decision
on a pretrial motion in limine may not definitively decide an issue, but a party relies on it
without renewing the issue at trial.

Motion CARRIED.

A member asked what the meaning of "suggested" was when used in
subdivision (d) at page
311, lines 31-33. A member said the prior language of the rule gave examples for suggestion
of evidence, such as the court or attorneys making statements or offers of proof within the
hearing of the jury.

Mr. Dunn MOVED to restore the former language at page 311, lines
39-30, and transfer it
to the end of the sentence at page 311, line 33. Ms. McLean seconded.

A member said the term "suggest" was very awkward and some
explanation was

-29-

appropriate.

Motion CARRIED.

A member asked what would happen if an exhibit is offered, objected
to, an offer of proof
made, but ultimately not admitted when one witness is on the stand. Then later, another
witness provides the foundation for the exhibit that was offered, but the party who offered
the exhibit makes no effort to renew its attempt to admit the exhibit. The member asked
whether the party offering the evidence on appeal could then argue the court erred by not
admitting the evidence because Rule 103 essentially required the court to reverse itself
without the party offering taking any affirmative action.

A member said the federal notes at page 315 said that the "no need to
renew" language
imposes an obligation on counsel to ensure that an evidentiary ruling is definitive. A member
asks whether this means that counsel has an obligation to attempt to reintroduce evidence
once a new foundation is laid or whether they can simply search the record after trial for
foundation and use what they find to argue that the judge erred in refusing to admit an
exhibit. Committee members said that the evidence would have to be re-offered once the
foundation had been laid.

A member suggested that the language of the rule could be modified to
indicate that the
court must state that an evidence ruling is definitive before a party could rely on not having
to renew an objection or make an offer of proof. A member said that it is unclear what
"definitive" means. A member said that a zealous attorney will continue to try to admit
important evidence even when the court says a ruling is definitive. A member said it is
counsel's job, not the court's, to try to admit evidence and to point out new foundation that
comes out in the course of trial.

A member pointed out language in the federal comments on page 316
that provided insight
into the definition of a "definitive" ruling. Staff was instructed to revise the explanatory note
to include the federal language to reflect the changes made by the Committee.

The main motion CARRIED. The rule proposal will made part of the
Evidence Rules
Package, which will be sent to the Supreme Court when complete.

The Chair said that the Supreme Court
had recently reviewed a matter in which one party
wanted to read part of a deposition into the record and the opposing party requested that the
entire deposition be admitted under Rule 106. Unfortunately, the full transcription was not
yet available so there was an issue as to who had to pay for the full transcription. The full
transcription ultimately was not admitted because it had not been completed.

The
motion CARRIED. The rule proposal will made part of the Evidence Rules Package,
which will be sent to the Supreme Court when complete.

Staff presented proposed amendments to
Rule 201 based on the amendments to the federal
rule. Staff explained that the
proposed new subdivision (f) follows the federal rule and
applies different standards to jury instructions on judicial notice in civil and criminal
cases.

A member said there was no need to have a separate standard for
judicial notice in civil and
criminal cases. A member said if there was a separate standard for judicial notice, there
would be no reason for a judge ever to take judicial notice in a criminal case.

A member said the court needs to take judicial notice of certain things,
such as that a can
of beer contains alcohol, so the state does not need to have chemical tests done in every
minor in possession case. The member said if evidence is so strong that the court is able to
take judicial notice of it, then there should be no separate standard in a criminal case. The
member said that safeguards exist under the rule and the opposing part can raise objections
to judicial notice and make a record.

A member said if the state is asking the court to take judicial notice of
an important fact,
such as whether there was alcohol in a beer can, the defense should be able to object and the
jury should be allowed to consider the issue for itself. The member said there should not be
conclusive judicial notice of facts in a criminal case. The member said judicial notice is
mostly useful to speed the trial along and this is not a key consideration in a criminal
case.

A member said that judicial notice is not often needed in a criminal
case given that the jury
almost always gets the matters of common knowledge and science instruction.

The motion CARRIED 11-5.

The main motion CARRIED. The rule proposal will made part of the
Evidence Rules
Package, which will be sent to the Supreme Court when complete.

The meeting adjourned at approximately 11:35 a.m. on January 27,
2012.